Arctic Yearbook 2015 - Page 217

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Arctic Yearbook 2015
Difficulties arise from the diversification and expansion of international law (Koskenniemi 2006) and
this is particularly true for environmental conventions and protocols. When it comes to offshore
exploitation, no international agreement with all the Arctic states as parties exist, but international
rules and international or regional agreements apply to the Arctic region (e.g. with regard to pollution
caused by shipping: MARPOL 73/78, the International Convention for the Prevention of Pollution
from Ships and the Polar Code).
This situation leads to the issue of fragmentation of law, geographically or functionally limited treaty
systems potentially creating not only gaps but also problems of consistency. The UNCLOS provides
applicable legal principles which are fairly general and vague (Koivurova & Hossain 2008), the OSPAR
convention for the protection of the marine environment of the Northeast Atlantic covers pollution
from offshore sources (article 5), but geographically it only covers the North-East Atlantic (and half
of Greenland). It is ratified by three of the European Arctic states (Norway, Iceland and Denmark
including Greenland), but Russia is not a party. Another example of the limited duties ascribed to state
parties is the International Convention on Oil Pollution Preparedness, Response and Co-operation
1990 (OPRC) which does not require that states meet minimal requirements concerning t he
positioning and deployment of oil spill equipment and personnel (Byers & Stoller 2013).
The issue of international law and offshore hydrocarbon activities has been well documented
(Johnstone 2015, Byers 2013). This includes the issue of ratification – for instance the Espoo
Convention that sets out the obligations of parties to assess the environmental impact of activities at an
early stage of planning is poorly ratified in the Arctic – or legal uncertainties pertaining to sovereign
rights claims (in Svalbard or the Beaufort Sea for instance). I will thus focus on recent treaties.
The Agreement on Co-operation on Marine Oil Pollution Preparedness and Response (2013) signed
by the Arctic states and the Faroe Islands under the auspices of the Arctic Council stands as an
essential agreement for a coordinated response between Arctic states. It is yet considered a “weak and
incomplete response” to the risks associated with Arctic offshore oil (Byers & Stoller 2013) on the
grounds that it does not create any new obligations to existing regulations. In addition, the
implementation of the agreement is subject to the capabilities of the parties to the agreement and the
availability of relevant resources (article 15). A state could thus meet its obligations of due diligence
without spending the funds necessary for actual preparedness. Moreover, the outcome of disputes
between parties under the agreement is basically unenforceable: indeed, disputes arising between states
“shall be settled by direct consultations”; “no weaker provision could have been drafted” (Johnstone
2015: 161).
The adoption of the Polar Code (International Code for Ships Operating in Polar Waters 2015) by the
IMO in May 2015 leaves some uncertainties. What happens when the regulation is less strict than
domestic norms? For instance, the carriage and use of heavy fuel, which is banned in Antarctica
(regulation 43 of MARPOL Annex I) is not banned in the Arctic, where shipping activity has increased
in the Northern Sea Route. A recommendation in the Polar Code “encourages the application of
regulation 43 in Arctic waters” (Polar Code 2014).3 Norway imposes a ban on the use of heavy fuel
oil in some areas around Svalbard (AECO 2015). The new EU Directive (2012/33/EU) as regards
the sulphur content of marine fuels4 follows the MARPOL Annex VI to reduce the transport of heavy
Cécile Pelaudeix